UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

)
v. )
)
MICHAEL T. FLYNN, )
) Crim Number 17-232 (EGS)
Defendant. )
)
)

AMICUS BRIEF FOR THE STATES OF OHIO, ALABAMA, ALASKA, ARKANSAS,

FLORIDA, GEORGIA, INDIANA, LOUISIANA, MISSISSIPPI, MISSOURI, OKLA-
HOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WEST VIRGINIA
IN SUPPORT OF THE UNITED STATES

DAVE YOST
Attorney General of Ohio

BENJAMIN M. FLOWERS
Ohio Solicitor General
30 E. Broad St., Floor 17
Columbus, OH 43215
Tel: 614.466-43215
Email: bflowers@ohioattorneygeneral.gov
 TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ......................................................................................................... ii
STATEMENT OF AMICI INTEREST AND SUMMARY OF ARGUMENT ........................... 1
ARGUMENT ................................................................................................................................. 2
I. The decision to charge a crime is a critically important function, deliberately left to
the executive branch alone. ........................................................................................... 2
II. The Court lacks authority to exercise judgment over a decision that constitutionally
belongs to the executive branch. ................................................................................... 4
III. The Court ought not offer personal comment on the wisdom of the United States’
decision not to continue prosecuting General Flynn. ....................................................7
CONCLUSION .............................................................................................................................. 8
CERTIFICATE OF SERVICE .....................................................................................................10

i
 TABLE OF AUTHORITIES

Cases Page(s)

In re Aiken Cty.,
725 F.3d 255 (D.C. Cir. 2013) ............................................................................................ 3, 4, 5

Alderson v. State,
273 S.W.3d 533 (Mo. 2009) .......................................................................................................4

City of Norwood v. Horney,

110 Ohio St. 3d 353 (Ohio 2006) ................................................................................................4

Confiscation Cases, 7 Wall. 454 (1869) .............................................................................................. 5

DOC v. New York,

139 S. Ct. 2551 (2019).................................................................................................................8

In re: Donald J. Trump,

— F.3d. —, No. 18-2486 (4th Cir. May 14, 2020) ....................................................................8

Morrison v. Olson,
487 U.S. 654 (1988)................................................................................................................ 1, 9

Rinaldi v. United States,

434 U.S. 22 (1977) ......................................................................................................................6

Steen v. Appellate Div. of Superior Court,

59 Cal. 4th 1045 (Cal. 2014) .......................................................................................................4

United States v. Abushaar,

761 F.2d 954 (3d Cir. 1985) ........................................................................................................ 5

United States v. Armstrong,

517 U.S. 456 (1996) .................................................................................................................... 1

United States v. Nixon,

418 U.S. 683 (1974) .................................................................................................................... 5

United States v. Pimentel,

932 F.2d 1029 (2d Cir. 1991) ......................................................................................................6

United States v. Sineneng-Smith,

590 U.S. ___ (U.S. May 7, 2020) ............................................................................................. 5

Williams v. Pennsylvania,
136 S. Ct. 1899 (2016) ................................................................................................................ 7

ii
Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) ....................................................................................................................8

Rules and Constitutional Provisions

U.S. Const., art. II, §1 ...................................................................................................................... 1

U.S. Const., art. III, §1 ................................................................................................................. 1, 4

U.S. Const., art. III, §2 .................................................................................................................... 5

Fed. R. Crim. P. 48 ...................................................................................................................... 6, 7

Other Authorities

The Federalist No. 74, 501 (A. Hamilton) (Cooke, ed., 1961) .........................................................2

Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3
(1940) ..................................................................................................................................... 2, 3

iii
 STATEMENT OF AMICI INTEREST AND SUMMARY OF ARGUMENT

“If to describe this case is not to decide it, the concept of a government of separate and

coordinate powers no longer has meaning.” Morrison v. Olson, 487 U.S. 654, 703 (1988) (Scalia,

J., dissenting). Our Constitution vests the “executive power … in a President of the United

States.” U.S. Const., art. II, §1. That power includes the power to prosecute. But, just as im-

portant, it includes the power not to prosecute. United States v. Armstrong, 517 U.S. 456, 464

(1996). The judiciary has only the “judicial [p]ower,” U.S. Const., art. III, §1, which includes only

the power to resolve cases and controversies. Judges have no share of the executive power, and

thus no say in the decision whether to prosecute.

What the Constitution has put asunder, let no judge join together. Here, the President,

through his agents, has decided not to prosecute. Yet this Court has appointed an amicus curiae

“to present arguments in opposition to the government’s Motion to Dismiss”—implying that the

Court may order the prosecution to continue. Order Appointing Amicus Curiae, Doc. 205 (May

13, 2020). This Court may not order the commencement of any prosecution, and therefore may

not order the continuation of what it could not initiate. The Court should grant the United States’

motion without delay and without irrelevant or personal comment.

The State Attorneys General who signed this brief are executive officers, who—like the

United States Attorney General—oversee all or some of their States’ prosecutorial functions.

Some have significant experience prosecuting cases in court. Each understands the complex na-

ture of the decision to pursue, or not to pursue, a criminal conviction. And each understands the

importance of allowing prosecutors to make this decision—a decision that may well be immensely

unpopular—free from judicial interference. This short brief will elaborate on the problems this

1
Court has created by inserting itself into the Justice Department’s exercise of prosecutorial discre-

tion.

ARGUMENT

The Court should immediately grant the federal government’s motion to dismiss the infor-

mation against General Flynn because the federal judiciary has no authority to make the executive

branch pursue (or continue to pursue) a criminal conviction. And the Court should grant the mo-

tion without commentary on the decision to charge or not to charge, because such punditry dis-

robes the judiciary of its cloak of impartiality.

I. The decision to charge a crime is a critically important function, deliberately left to

the executive branch alone.

State and federal prosecutors have an awesome responsibility: to decide whether to charge

their fellow citizens with crimes, initiating a process that, if successful, will deprive another human

being of his liberty. The decision to charge is often a prosecutor’s most-noticed act, but the most-

consequential decision is often the decision not to pursue charges. Our system depends on prose-

cutors’ ability to make this decision unimpeded.

Consider first a practical point. Every prosecutor swears an oath to uphold the law, but

that cannot mean charging every criminal act. “With the law books filled with a great assortment

of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on

the part of almost anyone.” Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. &

Criminology 3, 5 (1940). Even technical or seemingly minor violations may carry severe penalties.

Thus, “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a

countenance too sanguinary and cruel.” The Federalist No. 74, at 501 (A. Hamilton) (Cooke, ed.,

1961).

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 One such exception comes in the form of prosecutorial discretion. In making the decision

not to charge a crime, prosecutors may account for innumerable considerations. For example, and

relevant here, a prosecutor might validly decline to pursue a conviction if investigators, instead of

“discovering the commission of a crime and then looking for the man who has committed it,” set

about “picking the man and then searching the law books … to pin some offense on him.” Jackson,

The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology at 5. More typically, a prosecutor will

consider the deterrent effect a conviction would send; the community’s legitimate interest in ret-

ribution; the harms a prison sentence would impose on the accused’s family or community; and so

on. In all cases, the prosecutor can account for case-specific factors—factors unknowable to a leg-

islature promulgating generally applicable laws—that justify turning the other cheek.

The discretion not to charge a crime, in addition to being a practical necessity, is also a

bulwark of liberty. Indeed, it is just as important to protecting liberty as the many procedural pro-

tections secured by the Bill of Rights and by state constitutions. As the D.C. Circuit recognized in

speaking of the federal system (in an opinion by then-Judge Kavanaugh), one of the “greatest uni-

lateral powers a President possesses under the Constitution, at least in the domestic sphere, is the

power to protect individual liberty by essentially under-enforcing federal statutes regulating private

behavior—more precisely, the power either not to seek charges against violators of a federal law or

to pardon violators of a federal law.” In re Aiken Cty., 725 F.3d 255, 264 (D.C. Cir. 2013). The

discretion to not pursue a charge serves as a vital check on legislative authority. Before the govern-

ment may take a citizen’s liberty, it must identify an executive officer willing to bring charges.

Prosecutorial discretion thus “operate[s] as an independent protection for individual citizens

against the enforcement of oppressive laws that Congress may have passed (and still further

3
protection comes from later review by an independent jury and Judiciary in those prosecutions

brought by the Executive).” Id.

The same could be said about state prosecutors all around the country. State constitutions,

like the federal constitution, protect liberty by dividing governmental power between co-equal

branches and equipping each to check overreach by the others. See, e.g., Steen v. Appellate Div. of

Superior Court, 59 Cal. 4th 1045, 1059–60 (Cal. 2014) (Liu, J., concurring); Alderson v. State, 273

S.W.3d 533, 539 (Mo. 2009); City of Norwood v. Horney, 110 Ohio St. 3d 353, 386 (Ohio 2006). In

these systems, as in the federal system, the power not to charge a crime is an important check that

the executive branch may wield to protect against the legislature’s excesses.

II. The Court lacks authority to exercise judgment over a decision that constitutionally
belongs to the executive branch.

In this case, the federal government has exercised prosecutorial discretion, opting not to

continue pursuing charges against General Flynn. Rather than simply granting the United States’

motion to dismiss the information against General Flynn, this Court delayed a ruling in an order

that solicited amicus briefs from “individuals and organizations.” Order of May 12, 2020. It then

took the further step of appointing an amicus curiae “to present arguments in opposition to the

government’s Motion to Dismiss.” Order Appointing Amicus Curiae, Doc. 205 (May 13, 2020).

There was no reason to issue these orders because this Court has no say in the federal gov-

ernment’s decision not to prosecute. Simply put, the decision not to pursue a criminal conviction

is vested in the executive branch alone—and neither the legislature nor the judiciary has any role

in the executive’s making of that decision. “After enacting a statute, Congress may not mandate

the prosecution of violators of that statute.” Aiken Cty., 725 F.3d at 264. And nothing in the

judicial power—the power to decide concrete cases and controversies, see U.S. Const., Art. III,

4
§§1, 2—permits courts to second-guess the executive branch’s decision not to pursue a conviction.

See United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation Cases, 7 Wall. 454, 458–59 (1869).

Courts decide cases; they do not litigate them, as the Supreme Court reminded lower courts just a

couple of weeks ago. See United States v. Sineneng-Smith, 590 U.S. ___, slip op. 3 (U.S. May 7,

2020).

The Court’s desire to assume the role of a prosecutor evinces a total lack of regard for the

role that the separation of powers plays in our system. Before the federal government may deprive

a citizen of his freedom, it must navigate a number of hurdles. It must find a law that the citizen

violated, a prosecutor willing to press charges, a jury of other citizens willing to convict, and a court

to uphold the legality of the prosecution. In other words, the judiciary is supposed to function as a

constitutional check on deprivations of liberty—it is not supposed to remove constitutional checks

on deprivations of liberty. But that is exactly what the Court would do by second-guessing the

prosecutors’ decision not to continue pursuing this case.

Worse still, the Court’s order calls for the views of private “individuals and organizations.”

The Ancient Greeks, to be sure, sometimes put to a vote the question whether a citizen ought to

be ostracized, or banished from society. United States v. Abushaar, 761 F.2d 954, 959 (3d Cir. 1985).

But our Framers opted against the Greek model. They put space between the People and the crim-

inal process, including by vesting in the executive branch alone the power to decide whether to

pursue state-sanctioned punishment. The People, no doubt, will still have their say at the ballot

box—they can vote out of office the President or the State Attorney General whose prosecutorial

decisions they disagree with. See Aiken, 725 F.3d at 266. But the question of what the public thinks

5
about the prosecution of General Flynn has no bearing on this Court’s decision whether to grant

leave to dismiss this case.

It is true that Criminal Rule 48(a) requires a prosecutor to seek leave of the court when

dismissing a case, but that does not change the analysis. In the context of a case like this—one

where the government has decided not to prosecute a defendant—the rule gives courts the merely

ministerial role of granting leave and dismissing the case. The rule provides:

The government may, with leave of court, dismiss an indictment, information, or

complaint. The government may not dismiss the prosecution during trial without
the defendant’s consent.

This rule is unconstitutional if it is applied to mandate the continued prosecution of a defendant

the federal government has chosen not to prosecute. When applied in that manner, the ruling court

exercises executive power, and thus exceeds the limits of Article III, which permits courts to exer-

cise only the judicial power. So it is perhaps unsurprising that the Supreme Court, in describing

the purpose of the leave-of-court requirement, explained that the requirement was never intended

to be used to override the government’s decision not to prosecute. “The principal object of the

‘leave of court’ requirement,” the Court explained, was “apparently to protect a defendant against

prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves

to dismiss an indictment over the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22,

29 n.15 (1977). In other words, the rule exists to stop the government from prosecuting a defendant

in an abusive manner. Applied that way, the rule is consistent with the judicial role: it gives courts

a negative power to stop abusive prosecutions that are “clearly contrary to manifest public inter-

est,” United States v. Pimentel, 932 F.2d 1029, 1033 n.5 (2d Cir. 1991) (quoting United States v.

Cowan, 524 F.2d 504, 513 (5th Cir. 1975)), but it does not confer a positive power to compel pros-

ecutions. The judicial power includes the power to ensure that prosecutions comport with law; it

6
does not, however, include the power to ensure that prosecutions occur in the first place. Here,

the only reason to deny the government’s motion would be to compel the prosecution of General

Flynn. The Court has no power to do that.

Even aside from the separation-of-powers issues, there are insurmountable practical prob-

lems with using Rule 48(a) to mandate the continued prosecution of a defendant the government

has decided not to pursue. First, suppose a court were to deny the prosecution’s request. What

would the prosecution, at that point, do? Presumably, if forced to litigate, it would stand up at trial

and immediately rest its case without putting on evidence. Could the court avoid this outcome by

appointing a special prosecutor and ordering the special prosecutor to continue the case? No; once

a court orders the prosecution, it aligns itself with the prosecution and can no longer serve as a

neutral arbiter. “The due process guarantee that ‘no man can be a judge in his own case’ would

have little substance if it did not disqualify a former prosecutor from sitting in judgment of a pros-

ecution in which he or she had made a critical decision,” including the decision to charge. Williams

v. Pennsylvania, 136 S. Ct. 1899, 1906 (2016). By ordering a court-appointed prosecutor to carry

on with the prosecution of General Flynn, this Court would, in essence, make the critical decision

to charge a crime, disqualifying itself from presiding over this case.

III. The Court ought not offer personal comment on the wisdom of the United States’
decision not to continue prosecuting General Flynn.

Perhaps the Court is soliciting the views of amici so that it may chastise or praise the De-

partment of Justice’s decision in this case. It should refrain from doing so. It has become trendy

in recent years for courts to weigh in on the wisdom of this administration’s policy decisions. Too

often, that commentary comes in grandiose terms more appropriate for an op-ed than a judicial

opinion. These opinions leave the public with the impression that courts apply “administration-

7
specific standard[s]” in deciding what this President may do and what may permissibly be said

about this President’s policies. DOC v. New York, 139 S. Ct. 2551, 2576 (2019) (Thomas, J., dis-

senting). “When partisan fevers grip the national government, the judiciary must operate as a non-

partisan counterweight and discourage suits whose inevitable denouement will make [the courts]

part of the political scrum.” In re: Donald J. Trump, — F.3d. —, No. 18-2486, slip op. 29 (4th Cir.

May 14, 2020) (Wilkinson, J., dissenting). The steady stream of overwrought commentary en-

courages such suits, and further inserts the judiciary into the partisan scrum.

This trend is disastrous for the Judiciary, because it erodes public confidence in the courts’

ability to serve as neutral arbiters in politically sensitive cases. “The importance of public confi-

dence in the integrity of judges stems from the place of the judiciary in the government. Unlike

the executive or the legislature, the judiciary ‘has no influence over either the sword or the purse;

… neither force nor will but merely judgment.’” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445–46

(2015) (quoting The Federalist No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961)). “The judici-

ary’s authority therefore depends in large measure on the public’s willingness to respect and follow

its decisions.” Id. The frequent commentary on the wisdom of this administration’s decisions

leaves the public, however unfairly, with the perception that the judiciary is just another political

combatant whose decisions are entitled to no special respect.

The Court should leave the commentary to the commentariat. It should grant the United

States’ motion without elaboration.

CONCLUSION

Decisions to grant leave are routinely granted, and this one should be as well, without need-

less comment. A judge who abandons the bench for the prosecutor’s table can serve credibly in

neither role. Just as the executive must respect the decisions the Constitution leaves to the

8
judiciary, so must the judiciary respect the decisions the Constitution leaves to the executive—

that is what gives meaning to the “concept of a government of separate and coordinate powers.”

Morrison v. Olson, 487 U.S. 654, 703 (1988) (Scalia, J., dissenting).

May 18, 2020 Respectfully submitted,

STEVE MARSHALL
Attorney General of Alabama

KEVIN G. CLARKSON
Attorney General of Alaska

LESLIE RUTLEDGE
DAVE YOST
Attorney General of Arkansas
Attorney General of Ohio
ASHLEY MOODY
/s/ Benjamin M. Flowers
Attorney General of Florida
BENJAMIN M. FLOWERS
Ohio Solicitor General
CHRISTOPHER M. CARR
30 E. Broad St., Floor 17
Attorney General of Georgia
Columbus, OH 43215
Tel: 614.466-43215
AARON NEGANGARD
Email: bflowers@ohioattorneygeneral.gov
Chief Deputy Attorney General of
Indiana

JEFF LANDRY ALAN WILSON

Attorney General of Louisiana Attorney General of South Carolina

LYNN FITCH KEN PAXTON

Attorney General of Mississippi Attorney General of Texas

ERIC SCHMITT SEAN D. REYES

Attorney General of Missouri Attorney General of Utah

MIKE HUNTER PATRICK MORRISEY

Attorney General of Oklahoma Attorney General of West Virginia

9
 CERTIFICATE OF SERVICE

I hereby certify that, on May 18, 2020, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF email system and copied parties to the case.

Jesse R. Binnall Zainab Naeem Ahmad

HARVEY & BINNALL, PLLC U.S. DEPARTMENT OF JUSTICE
717 King Street 950 Pennsylvania Avenue NW
Suite 300 Room B-103
Alexandria, VA 22314 Washington, DC 20530
(703) 888-1943 (202) 616-0800
Email: jbinnall@harveybinnall.com Email: zna@usdoj.gov

Robert K. Kelner Deborah A. Curtis

COVINGTON & BURLING LLP U.S. ATTORNEY'S OFFICE FOR THE
850 Tenth Street, NW DISTRICT OF COLUMBIA
One City Center 555 Fourth Street, NW
Washington, DC 20001 Washington, DC 20530
(202) 662-5503 (202) 252-6920
Fax: (202) 778-5503 Email: deborah.curtis@usdoj.gov
Email: rkelner@cov.com
Jocelyn S. Ballantine
W. William Hodes U.S, ATTORNEY'S OFFICE FOR THE
THE WILLIAM HODES LAW FIRM DISTRICT OF COLUMBIA
3658 Conservation Trail 555 4th Street, NW
The Villages, FL 32163 Suite 11-445
(352) 399-0531 Washington, DC 20001
Fax: (352) 240-3489 (202) 252-7252
Email: wwh@hodeslaw.com Email: jocelyn.ballantine2@usdoj.gov

Lindsay R. McKasson John Edward Hall

HARVEY & BINNALL, PLLC COVINGTON & BURLING LLP
717 King Street One CityCenter
Suite 300 850 Tenth Street NW
Alexandria, VA 22314 Washington, DC 20001
(703)888-1943 202-662-5104
Email: lmckasson@harveybinnall.com Fax: 202-778-5104
Email: jhall@cov.com
Molly McCann
SIDNEY POWELL, PC
2911 Turtle Creek Boulevard
Suite 300
Dallas, TX 75219
(214)707-1775

10
Email: mccann.mol@gmail.com

Sidney Powell
SIDNEY POWELL, P.C.
2911 Turtle Creek Blvd
Ste 300
Dallas, TX 75219
214-707-1775
Email: sidney@federalappeals.com

/s/ Benjamin M. Flowers

BENJAMIN M. FLOWERS
Ohio Solicitor General
30 E. Broad St., Floor 17
Columbus, OH 43215
Tel: 614.466-43215
Email: bflowers@ohioattorneygeneral.gov

11